New Jersey Appellate Division Holds Non-Debtor Did Not Waive Rights to Levied Monies in Joint Account

In a decision approved for publication, the New Jersey Appellate Division recently held that a debtor’s spouse did not waive her right to dispute a bank levy on a joint account when her attorney executed a consent agreement and represented to the creditor that she agreed to the same. See Banc of Am. Leasing & Capital, LLC v. Fletcher-Thompson Inc., 2018 WL 259383 (N.J. Super. Ct. App. Div. Jan. 2, 2018).

New York Court Denies Motion for Summary Judgment from Property Purchasers and Holds Deed May Be Void Ab Initio

The Surrogate’s Court of New York, Queens County recently denied respondents’ motion for summary judgment and held there were issues of fact as to whether a deed conveying a property from a man in a nursing home may be void ab initio.  See In re Rosenblatt, 57 Misc. 3d 1209(A) (N.Y. Sup. Ct. 2017).  In the case, the seller entered a nursing home in 2004 after suffering a stroke. 

Idaho Federal Court Grants Defendant Title Insurance Company’s Motion to Decertify Class in Light of Individualized Nature of Proof Involved in Determining Appropriate Title Insurance Rates

In a class action filed by plaintiff against defendant title insurance company alleging that she was overcharged for title insurance when she refinanced her home, the United States District Court for the District of Idaho recently granted defendant’s motion to decertify the class, holding, among other things, that proof of liability as to each class member is too highly individualized.  See Lewis v. First Am. Ins. Co., 2017 WL 3269381 (D. Idaho 2017). 

New York’s First Department Reverses Trial Court’s Denial of Summary Judgment in Foreclosure Despite Errors in Affidavits

The First Department of New York’s Appellate Division recently held that a trial court should have granted a lender summary judgment in an action.  See Bank of Am., Nat. Ass’n v. Brannon, 63 N.Y.S.3d 352 (N.Y. App. Div. 2017).  In the case, the defendant-borrower defaulted on her loan in 2007, and plaintiff commenced a foreclosure action.  In 2008, the trial court granted plaintiff’s motion for summary judgment and in 2009, plaintiff assigned the mortgage to IFS Properties, LLC (“IFS”). 

New York’s First Department Holds Mortgagee’s Interest in Property Was Not Rendered Null and Void Where Mortgagors Had Acquired Property by Fraudulent Means

The First Department of New York’s Appellate Division recently held that a mortgagee’s interest in a property was not rendered null and void where the mortgagors had acquired the property by fraudulent means.  See Weiss v Phillips, 2017 WL 5575033 (N.Y. App. Div. Nov. 21, 2017).  In the case, defendant purchased two distressed properties and transferred one of the properties to a relative.  Defendant later sent a paralegal to obtain the relative’s signature on a blank deed to transfer the property back to the defendant; instead, the paralegal inserted his mother’s name as the grantee. 

Wisconsin Federal Court Holds That Creditor Who Inadvertently Included Extra Space in Debtor’s Name in UCC Financing Statement Was Unsecured

The United States District Court for the Western District of Wisconsin recently held that a creditor did not perfect its security interest in the debtor’s property because the creditor inadvertently included a space in the debtor’s name in its UCC financing statement.  See United States Sec. & Exch. Comm’n v. ISC, Inc., 2017 WL 3736796 (W.D. Wis. 2017).  In the case, the creditor filed a UCC financing statement with the Wisconsin Department of Financial Institutions (“DFI”) regarding an interest it had in certain assets of the debtor, ISC, Inc.  However, the creditor accidentally included a space between “Inc” and the period, naming the debtor as “ISC, Inc .”

New Jersey Appellate Division Affirms That Lender Was Not Entitled to Priority for Its First-Recorded Mortgage When It Was Aware of Other Mortgage, Even if It Was Not Aware of Other Mortgagee’s Identity

The New Jersey Appellate Division recently affirmed that a lender who records a mortgage with knowledge of another unrecorded mortgage is not entitled to priority over the subsequently-filed mortgage, even if the lender was not aware of the identity of the other mortgagee.  See Morgan Stanley Private Bank v. Earle, 2017 WL 5988070 (N.J. App. Div. Dec. 4, 2017).   In the case, the defendant lender obtained a $5,000,000 mortgage on the borrower’s property in 2008. 

Texas Appellate Court Affirms Grant of Summary Judgment for Title Agent, Holding It Was Not Liable to Third Party for Escrow Disbursement

A Texas appellate court recently affirmed a lower court’s decision granting summary judgment and holding that a title agent and its individual employee were not liable to a nonparty to the escrow agreement for their disbursement of escrow funds, regardless of whether the nonparty contributed said funds.  See Muller v. Stewart Title Guar. Co., 525 S.W.3d 859 (Tex. App. 2017). 

New York Supreme Court Dismisses Defendant’s Usury Defense for Merchant Agreement

The Supreme Court of New York, Westchester County, recently granted a plaintiff’s motion to dismiss defendant’s affirmative defenses and counterclaims and held that the parties’ merchant agreement whereby plaintiff purchased defendant’s future receivables was a valid contract, and not a usurious loan, as defendant alleged.  See Rapid Capital Fin., LLC v. Natures Mkt. Corp., 2017 WL 4764559 (N.Y. Sup. Ct. Oct. 11, 2017).

New Jersey Federal Court Dismisses Plaintiff’s Complaint Against Mortgage Servicer Under Rooker-Feldman and Entire Controversy Doctrines

The United States District Court for the District of New Jersey recently granted a mortgage servicer’s motion to dismiss a borrower’s claim because the allegations should have been brought in the parties’ foreclosure action.  See Sanchez v. Select Portfolio Servicing, Inc., 2017 WL 4711475 (D.N.J. Oct. 20, 2017).  In the case, plaintiff defaulted on a loan and defendant’s predecessor in interest instituted a state court foreclosure action in 2008.